As a mediator specializing in “lemon law” cases, I work with many of the same plaintiffs’ and defense counsel over and over again. They also work with each other over and over again, as well. These two points can be good… and can be bad as I quickly found out recently.

In speaking with one counsel about a case, she started to mention another case to me that she had with an attorney with whom she knew I had also worked in the past. Over the ensuing months, we would have these periodic conversations.

The tenor of the conversations was that counsel did not get along at all for two reasons; lack of “reciprocity” and lack of “liking”. These two principles are discussed in Robert Cialdini’s book, Influence: Science and Practice (Allyn and Bacon, 4th ed. 2001). The first principle-reciprocation “… says that we should try to repay in kind, what another person has provided us….” (Id. at 20.) Thus, if someone provides us with a free soda, we will feel obliged to repay the favor in the future. The second principle-liking-says “… we most prefer to say yes to the requests of people we know and like.” (Id. at 144.)
Thus, if we “like” someone (not in the Face-Book sense), we tend to honor her request to do something.

I am told that from the start of this matter, and well before I got involved, defense counsel attempted to resolve the matter quickly and amicably. The response, I am told, was silence to a request for what it would take to settle the matter, and instead, a lot of discovery being propounded to defense counsel. When the responses allegedly were not to the liking of plaintiff’s counsel, she served defense counsel with motions to compel further and more complete discovery responses. This, I am told, occurred on several occasions.

As one can imagine, this did not get the reciprocity and liking principles off to a good start. Rather, the propounding of discovery followed by motions to compel further discovery led to the opposite effect; each side hated the other, thinking the other to be an *&^ %( $! .

So, I am slowly and unintentionally getting involved by being a good listener. This goes on for quite a few months. Then, one day, the parties want to get serious about trying to settle. Knowing that I am already “involved”, they request my help to try to mediate the matter by telephone speaking with counsel only. (A set-up for failure!) I agree, and as one may expect, the negotiations were quite stressful because neither side wanted to do the other side any favors (i.e., lack of reciprocity) by either decreasing the demand or offering a bit more to try to bridge the gap. No, they were both ready “to draw swords” and take the case to trial to “prove” their respective points (whatever they may be!) They both disliked each other so intensely (i.e. no “liking” principle here) and even though I cautioned counsel, that each needed to “separate the people from the issues”; undoubtedly, their respective dislike of each other greatly impacted their ability to settle. Because the “other” counsel was a #&^%* & ,each was quite stingy in  compromising on the amounts of money being offered and demanded. They would not “reciprocate” and there certainly was no “liking”.

Do not ask me how; but the matter did settle. It was one of my more stressful days, in which I really had to be flexible, patient, persistent (tenacious was more like it) and think quickly.

What this negotiation taught me is that it is a lot easier to negotiate when the principles of reciprocity and liking are at work rather than their opposites. As much as we may try, our emotions will not always allow us to “separate the people from the issues”, which will make for a most difficult negotiation.

… Just something to think about.


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